May 29, 2005

Smokin' too much Fowler

In my mail on 27 May, from Neal Goldfarb (of the Tighe Patton Armstrong
Teasdale law firm in Washington DC), a pointer to a most remarkable
(and disturbing) claim in a 2003 Supreme
Court Review article (Of
"This" and "That" in Lawrence v Texas, 55 Sup. Ct. Rev. 75) by
Mary Ann Case. Examining the following sentence from the Court's
October 2002 decision invalidating Texas's anti-sodomy law --

(1) The Texas statute furthers no
legitimate state interest which can justify its intrusions into the
personal and private life of the individual.

Case maintains that it is ambiguous as to whether the relative clause
in which is restrictive or
non-restrictive. That is, she maintains that (1) has an
interpretation as in

(2) The Texas statute furthers no
legitimate state interest, which can justify its intrusions into the
personal and private life of the individual.

which, according to her, entails

(3) The Texas statute furthers no
legitimate state interest.

She appeals to the authority of "strict grammarians" (citing, yes,
Fowler), maintaining that "a classically trained grammarian" would in
fact say that (1) was interpreted as in (2). It's that pesky That
Rule again, last discussed in Language Log here.

Case is "blinded by the rules", applying something she was presumably
once taught, rather than using her own knowledge of the language.
Sentence (1) is not ambiguous
in the relevant respect; it has only a restrictive
interpretation. Indeed, the purported paraphrase in (2) is ungrammatical, for reasons
that are well understood. Case has been smokin' way too much
Fowler.

How remarkable that two topics of great concern to me — the modern
advice literature on English grammar and usage, in particular the That
Rule, and the politics of homosexuality, in particular the regulation
of sodomy (between consenting adults in private) — should come
together this way. But how sad that a fundamental
misunderstanding about the grammar of English should have made its way
into the Supreme Court Review.

Case's claim in her article is that the majority opinion in Lawrence v
Texas (written by Justice Kennedy) exhibits a considerable degree of
unclarity, in part because of "ambiguity of referents". Sentence
(1) is just part of the web of unclarity she sees. In more detail:

At least for strict grammarians,
perhaps the most significant "that" in the entire majority opinion is
the one that isn't there, in the sentence dissenting Justice Scalia
describes as the opinion's "actual holding:" "The Texas statute
furthers no legitimate state interest which can justify its intrusions
into the personal and private life of the individual." Note, the
majority says "which can justify ..." rather than "that can
justify...." A classically trained grammarian would observe that this
should signal the majority's intention for the clause to be a
non-restrictive rather than a restrictive one (or, as Fowler puts it
"non-defining" rather than "defining"). "Non-restrictive clauses are
parenthetic.... A non-restrictive clause is one that does not serve to
identify or define the antecedent noun." Thus, if the majority
opinion is careful about its grammar, the question of whether the
opinion applies heightened or rational basis scrutiny can be answered
by noting that, technically, the sentence can be shortened to "The
Texas statute furthers no legitimate state interest" without altering
its meaning. In other words, the statute fails the lowest level
of scrutiny; no heightened scrutiny is required. Had the sentence
continued with "that" rather than "which," it could correctly have been
read to suggest instead that, while the Texas statute did "further a
legitimate state interest," the interest was not one "that can justify
its intrusion into the personal and private lives of individuals"; in
other words, the majority would have been acknowledging a need to apply
heightened scrutiny.

The main legal point here concerns the relevant level of scrutiny to be
applied. In Goldfarb's words, from his e-mail to me:

Regarding the phrase "heightened or
rational basis scrutiny": This refers to an important aspect of the
methodology of deciding whether a statute is unconstitutional. One of
the central issues in making that decision is what "level of scrutiny"
the court should apply. In other words, should the court take a
critical look at the statute and strike it down unless the government
presents a convincing justification for it (heightened scrutiny), or
should it give the statute the benefit of the doubt and uphold it as
long as there is some rational argument that could be made in its
support (rational basis scrutiny). This is an oversimplification, but
it will do for now.

In any case, the grammatical point is perfectly clear: which is entirely acceptable in
restrictive relatives, so that (1), punctuated as above, is understood
as having a restrictive relative. In fact, a non-restrictive
interpretation isn't possible at all; (2) is simply ungrammatical,
because the NP no legitimate state
interest isn't referential. The point is an old one.
It's explicit in The Cambridge
Grammar of the English Language (p. 1060):

Expressions consisting of no, any or every morphologically compounded
with -one, -body or -thing, or syntactically combined
with a head noun, have non-referential interpretations and cannot serve
as antecedent of a [non-restrictive] relative, but they can be followed
by [restrictive] relatives.

CGEL gives this rule
(contrasting *No candidate, who
scored 40% or more, was ever failed with the grammatical No candidate who scored 40% or more was
ever failed), but not, of course the That Rule, since the That
Rule "is not descriptive of actual usage" and so "had no place in a
descriptive grammar" (as Huddleston put it in e-mail on 28 May).

Goldfarb notes that Justice Kennedy "routinely violates the
prescriptive which/that rule" -- as any reasonable person would. Here
are three more instances, supplied by Goldfarb, of restrictive which (in bold) from the Lawrence opinion:

For many persons these are not trivial
concerns but profound and deep convictions accepted as ethical and
moral principles to which they aspire and which thus determine the course of
their lives.Romer invalidated an amendment
to Colorado's constitution which
named as a solitary class persons who were homosexuals, lesbians, or
bisexual either by 'orientation, conduct, practices or
relationships,'...
If protected conduct is made criminal and the law which does so remains unexamined for
its substantive validity, its stigma might remain even if it were not
enforceable as drawn for equal protection reasons.

The first of these is especially compelling, since the which is parallel to the earlier to which, and we all know that
restrictive which, rather
than that, is obligatory with
fronted prepositions, with the result that parallelism can be
maintained only by the choice of which
in the bolded position.